Court overturns judgment reinstating soldiers fired after absconding in Cuba

The Pretoria high court has overturned a previous judgment reinstating 36 soldiers who were dismissed by the SA National Defence Force (SANDF) for being absent for 30 days.

The soldiers were dismissed in March 2019. They then approached the same court to appeal the SANDF’s decision to terminate their contracts.

The SANDF terminated their contracts in terms the Defence Act , which stipulates that “once a member absents himself or herself form official duty without permission for more than 30 days, the operation of law kicks in and it is deemed that the member is dismissed”.

The high court upheld their appeal and they were reinstated retrospectively from the date of their termination.

Prior to their dismissal, the soldiers were part of a conclusion of a memorandum of understanding (MOU) between the SANDF and the Cuban military's department of defence, which involved the training of South African members of the air force, navy, army and South African Military Health Services (SAMHS).

The 36 soldiers in the matter before court were medical students of the SAMHS who were sent to Cuba to be trained as doctors, specifically in military medicine.

According to court papers, they undertook to comply with the various conditions set out in the MOU between themselves and the defence force. These included:

• For the prescribed period of the agreement, the respondents would study military medicine at a Cuban medical facility, attending classes within the official hours;
• The DoD undertook to pay fees and all related expenses of the respondents and they would allow the respondents to attend the course;
• To promptly and loyally comply with all prescripts, rules regulations and orders from the Institution and the DoD for the duration of the course. Failure to adhere to the above will result in termination of one’s studies and/or repatriation at the sole discretion of the DoD; and
• The respondents are to attend every session of training and abide fully to the rules and regulations as well as stipulations governing the attendance of the course as well as the institution.

The soldiers arrived in two groups. The first consisted of 26 workers who in 2017 were enrolled for premedical courses and a Spanish language course. The second group was made up of nine workers, who joined the premedical course in 2018.

The 2017 group raised concerns about their enrolment at the medical school. They claimed that they did not receive a satisfactory response from authorities.

“They continued to attend their lectures which were conducted at the university campus. They commenced their second semester on February 11 2019 and this is when they were informed that they would no longer be attending their lectures at the university but rather at the infantry school with the 2018 group, who were busy with pre-med studies,” the court papers read.

“The respondents refused and did not attend their lectures at the infantry school from February 11 2019 until their date of termination on March 26 2019.”

The groups decided not to attend classes until their concerns were addressed and opted to remain at their base camp. They then wrote a letter to a Brig-Gen NT Majola raising the same concerns as they had in April 2018.

Majola, court papers reveal, visited the groups in February 2019. During the meeting, the groups were reminded of the code of conduct and the agreement they signed. The groups were then requested to return to return to classes.

However, they decided not to continue with their studies because of the concerns they had raised.

On March 26 2019 they were brought back to SA and given letters terminating their contracts. The letters were dated February 25 2019.

In reaching her decision to overturn the reinstatement of the soldiers, judge Wendy Hughes said: “From February 11 2019 to February 25 2019, the appellants had made no less than four attempts to get the respondents back into their classes.”

She said the soldiers had been given opportunities to make submissions on why they should not be discharged, “but were dogmatic and dug in their heels, relying on their response of the February 13 2019 - even when they were advised that same was not sufficient”.

“Evidently on the respondents in respect of the return to South Africa, the respondents had by then absented themselves from their classes for more than 30 days, without permission.”